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08 January 2015

Executive Orders

I'm a little slow, as it typical for me: I can't do Mothering the way I think it ought to be done, and keep up with blogging about politics in a timely fashion. But I still think about freedom, and the effects of our politics on it. Recently, Obama used some Executive Orders(EO) to get some immigration reform done-- without Congressional approval. There was a lot of conversation about that, and I have my $.02 as well.

The issue is not that he uses EOs, but how he uses them. What he is doing -creating immigration reform- is legislative in nature, and therefore, it is out of line. All legislative power has been delegated to Congress - and none of it to the President. It's the very first power granted; the first thing addressed after the Preamble.

All legislative powers herein granted shall be vested in a Congress of the United States.
-Article I Section 1

It really doesn't matter what vehicle he uses, whether it's EOs or memoranda, or whatever: the President is not to create law. That's not a legitimate thing he can do. If he tries, it is usurpation. When the Federal government overreaches itself, and take upon itself to do things outside its authority, it isn't law at all, though they would really like us to think and act otherwise.

The powers of government are separated for a number of good reasons, not the least of which it to prevent too much power accumulating in the hands of a single person. Allowing the President to do things which are legislative in nature destroys the careful balance of power in our Constitution, and that balance exists to safeguard our freedoms.  A number of people rightly pointed out that he is not the first to employ this sort of overreach, and I have friends who have tried to make excuses for him on those grounds. Really, it is immaterial who did what with them in the past. Those who, like Obama is doing, have used it to do things that are legislative in nature, have done so in violation of our law, and should have been called on the carpet for it. Considering that it endangers the balance of power, and the check and balances, impeachment is not an outrageous thing to be looking at. We are duty-bound to uphold the Constitution. Nearly every prophet has said so. That includes condemning gross overreach such as the one currently being undertaken.

I repeat that no greater immediate responsibility rests upon members of the Church, upon all citizen of this republic and of neighboring republics, than to protect the freedom vouchsafed by the Constitution of the United States.
-David O. McKay (Conference, Apr. 1950)

In my reading of the original debates by the Founders when they were writing the Constitution, it appears that Congress is responsible for uniform rules of naturalization only and the Founders intended that the several States would retain broad powers over immigration, including who, when, and how, with the federal government responsible only for uniformity in naturalization, to prevent some of the issues that had occurred under the Articles of Confederation, such as States being forced to give the rights of citizenship to all residents of another State, including both resident and illegal aliens. The limited naturalization powers delegated were designed to eliminate that problem, and the wide federal control of immigration we currently have is clearly not what was intended by the Founders, nor has it been authorized by an amendment, so it is also technically overreach. I have blogged about that before. That post goes more into detail on this topic, with the relevant passages of the Constitution.

However. Even if you grant, for the sake of argument, the legitimacy of federal involvement in immigration, failure to act effectively on it is not nearly so serious as a breach in the separations of powers. Failure to act does cause problems. Problems which both parties share the blame for, and which do need to be addressed. But it does not threaten the very structure of our Republic. We fought a war in 1776. It lasted 8 years and took a heavy toll in blood and treasure in order to get those powers
separated. The separation of powers is fundamental to the difference between a monarchy and a republic. A monarch may both create law and see it enacted. He does so by divine right. He is responsible to nobody. A president, on the other hand, is an executive only. He does not create law; he executes law that has already been debated and approved by Congress. His powers derive their origin from the inalienable rights of the citizens to life, liberty, and property, and are not intrinsic to his person. It's not the name of the thing -EOs are not an awful thing if they are used correctly and judiciously- it's the nature of the thing. If it creates law, its legislative in nature, and out of bounds. The president may suggest measures, but if he doesn't get what he wants, that's ok. We call that checks and balances, and it's part of the design of our government.

Another thing I've seen a number of times, given as a justification for the overreach, is the votes that both Boehner and Reid have declined to bring to a vote, but that's actually the Constitution working as intended. We call that "checks and balances" when we take Civics class, and it's not at all a crime. The federal government is intended to be a slow machine. It's also supposed to be quite small. Most things are supposed to be handled at the State and local levels. The level of Constitutional ignorance in our country is breathtaking; it is taught so incredibly poorly, when it's taught at all.

Absolutely, every other president that did legislative stuff, however they did it, should have been impeached. But that's water under the bridge now. We The People (and our representatives in Congress) failed in our duty to uphold the Constitution then. That is no excuse for continued failure. Obama's immigration by Executive Order is illegitimate. There is no Presidential authority for this sort of action. He was, as his supporters like to point out, a teacher of Constitutional law; he knows very well what the powers of his office are, and chooses not to stay within them. For his usurpation he should be removed from office, and his measures should be defunded immediately by the House. Should they ever come before the Supreme Court, they ought to be struck down as the illegitimate usurpation that they are, and each of the individual States ought to be taking immediate steps to nullify his actions. Complacency is not how we retain our freedom.

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